Excerpt:.....parties have been decided by the said order - interlocutory orders passed during proceedings of a suit in trial court which does not decide any right is not covered under section 115 and no revision lies from it - framing of issues is a discretionary power of the trial court - consequently power to frame additional issues or allow amendments in issues also discretionary - decisions given by trial court in questions related to framing amending or adding issues are procedural matter not deciding any right and not covered under section 115. - - is to the following effect :the high court may call for the record of any case which has been decided by any court subordinate to such high court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a..........and it was accepted by him at that time that no other issue arises. during the pendency of the suit the statement of ladha ram plaintiff respondent was recorded on 9th april 1977 and in that statement he had categorically stated that he does not want any relief in respect of the agreement dated 7th april 1977. issues nos. 1 to 4 which are sought to be added related to the agreement dated 7th april 1977. in regard to issue no. 5, which was sought to be added by the defendants applicants the plaintiff respondent had in his statement on 23rd august 1972 categorically stated before the court that he has given up his claim to the tune of rs. 19,734/-, being the amount of commission claimed in the suit.5. the trial court, after examining the pleadings of the parties and various statements.....

Judgment:ORDER

S.D. Agarwala, J.

1. This is a revision filed under Section 115 of the Code of Civil Procedure against an order rejecting an application made by the applicant for framing additional issues in the case. The facts giving rise to the present revision are as follows :

The plaintiff respondent Ladha Ram and Co. filed a suit no. 21 of 1971 in the court of the 2nd Civil Judge, Meerut for a decree for Rs. 1,30,000/- against the defendant applicants. A written statement was filed on behalf of the defendants applicants. Thereafter almost after three years of the filing of the written statement an application was made for the amendment of the written statement. The proposed amendments were for deletion of paragraphs 25 and 26 and for substitution of new paragraphs 25 and 26. The trial court rejected the application of the defendants applicants for amendment. On the ground that the defendants applicants wanted to resile from the admissions made by them earlier and that the application for amendment was not a bona fide one. Against the decision of the trial court rejecting the amendment application Civil Revn. No. 1004 of 1974 (All) was filed by the applicants. The said revision was decided by M. P. Saxena, J. on 8th August 1975. This court held that the amendment was rightly rejected by the trial court and hence the revision was dismissed. Against the order dated 8th August 1975 the defendants applicants filed special leave in the Hon'ble the Supreme Court of India which was granted. The case was thereafter heard by the Supreme Court. The Supreme Court by its judgment dated 23rd September 1976 dismissed the appeal and upheld the order of this court. The Supreme Court held that it is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs Nos. 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement and if such amendments are allowed the plaintiff respondent will be irretrivably prejudiced by being denied the opportunity of extracting the admission from the defendants applicants. The judgment is reported in AIR 1977 SC 680.

2-3. In the judgment, however, the Supreme Court made an observation to the effect that two alternative pleas of the defendants applicants as alleged in paragraphs 25 and 26 of the written statement are there and the parties will beable to make their rival contentions on the pleadings as to the issues to be raised. The Supreme Court further observed that it will be open to the defendants applicants to apply for the framing of the issues and they will be at liberty to do so.

4. In view of the observations made by the Supreme Court the defendant applicants again started a second inning for obstructing the progress of the suit. When the case was taken up by the trial court an application was now made for framing five additional issues in the case. On the reading of the issues sought to be framed it is clear that an attempt was again made to raise the same questions which were sought to be raised by the amendment in the written statement which was ultimately rejected by the Supreme Court. By this device 'the defendant applicants wanted to again reopen the matter which had been finally concluded by the Supreme Court. In any case the trial court considered the matter in great detail and came to the conclusion that the five additional issues which were sought to be framed now did not arise and as such the application for framing additional issues was rejected. It may be stated here that after the written statement was filed by the defendants applicants the court on 23rd August 1972 had framed issues on the basis of the original paragraphs 25 and 26 of the written statement. The court had framed 12 issues in the presence of the court for the defendants applicants and it was accepted by him at that time that no other issue arises. During the pendency of the suit the statement of Ladha Ram plaintiff respondent was recorded on 9th April 1977 and in that statement he had categorically stated that he does not want any relief in respect of the agreement dated 7th April 1977. Issues Nos. 1 to 4 which are sought to be added related to the agreement dated 7th April 1977. In regard to issue No. 5, which was sought to be added by the defendants applicants the plaintiff respondent had in his statement on 23rd August 1972 categorically stated before the court that he has given up his claim to the tune of Rs. 19,734/-, being the amount of commission claimed in the suit.

5. The trial court, after examining the pleadings of the parties and various statements recorded during the course of trial, recorded a finding that the issues sought to be framed now did not in fact arise.Against this order the defendants applicants have now filed the present revision and have obtained a stay of the further proceedings of the suit.

6. Learned counsel for the plaintiff respondent has taken a preliminary objection to the effect that an order passed by the trial court in exercise of its jurisdiction under Order XIV Rule 5 of the Code of Civil Procedure rejecting an application for framing additional issues is not a case decided within the meaning of Section 115 C.P.C, and as such the revision filed in this court is not maintainable in law.

7. The relevant portion of Section 115 C.P.C. is to the following effect :

'The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a Jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,the High Court may make such order in the case as it thinks fit......'

In view of the above provision the revision would lie only if the impugned order would come within the expression 'any case which has been decided.

8. In S. S. Khanna v. F. J. Dillon (AIR 1964 SC 497), the Supreme Court had occasion to interpret the word 'case'. In the above case the Supreme Court held that the expression 'case' could not mean only entire proceedings but would also bring within its ambit a part of the proceedings. It held as follows (at p. 501) :

'The expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceedings in a civil court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of power of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.'

9. The Supreme Court in the above case further took the view that since the expression 'case includes a part of the case the revisional jurisdiction of the High Court may also be exercised irrespective of the question whether an appeal lies' from the ultimate order or decree passed in the suit.

10. The question as to what is a case decided came up for consideration before the Supreme Court in Baldevdas v. Fil-mistan Distributors (India) Pvt. Ltd., (AIR 1970 SC 406). Justice J. C. Shah, as he then was, delivering the judgment of the court opined (at p. 410):

'A case may be said to be decided, if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order, in the suit cannot be regarded as a 'case' decided within the meaning of Section 115.'

'Many a time a question arose in India as to what is the exact meaning of the phrase case decided occurring in Section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many other had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not prove of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. AIR 1970 SC 406 it has been pointed out (at p. 410):

'A case may be said to be decided if the court adjudicates for the purposes of the suit, some right or obligation of the parties is controversy.' We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133(1) of the Constitution yet it will not be purely or simply of an interlocutory character. Suppose for example a defendant raises the plea of jurisdiction of a particular court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that court. But if the point is decided against him the suit proceeds.'

12. In view of the principle laid down above it is clear that every interlocutory order passed by the trial court during the progress of the suit cannot be held to be a case decided within the meaning of Section 115 of the Code of Civil Procedure. The case can be said to be decided onlyif for the purpose of the suit some right or obligation of the parties have been decided by the said order. In case every interlocutory order is held to be a case decided this will defeat the very purpose for which the Legislature enacted Section 115 C.P.C. because that will give a handle to a party to a suit to obstruct the progress of the suit by approaching this court under Section 115 C.P.C. against every order which has been passed by the trial court in the said suit.

13. Order 14 of the Code of Civil Procedure lays down rules for the settlement of issues and determination of suits on issues of law or on issues agreed upon, Under Rule l issues arise when a materiel proposition of fact or law is affirmed by the one party and denied by the other. Rule 2 gives a discretion to the court to decide a particular issue as a preliminary issue. Rule 3 given a discretion to the court to frame issues on the basis of the allegations made on oath by the parties or by the persons present on their behalf or made by the pleaders of such parties the allegations made in the plaint or in answer to interrogatories delivered in the suit and on the basis of the contents of documents produced by either party. Rule 4 gives power to the court to examine witnesses or documents before framing issues. By Rule 5 power is conferred on the court to amend and strike out issues. Further power is given under Rule 5 to frame additional issues on such terms as it thinks fit or as may be necessary for determining the matter in controversy between the parties. The power to frame additional issues is a discretionary power of the trial court. Additional issues may be framed if the court thinks necessary for determining the matter in controversy. By an order refusing to frame additional issues or allowing an application for framing of additional issues no right or obligation of the parties in controversy is adjudicated upon by the court. It is a matter only of procedure. The Court, after examining the pleadings and other material on record as required under Rule 3, may frame the issues. Since no right or obligation of a party is determined by an order refusing to frame additional issues such an order cannot be held to be deciding a case between the parties and in my opinion it would not come within the ambit of the expression 'case which hag been decided'. Similar would be the position in regard to an order by which additional issues are framed or amended.

14. Learned counsel for the applicant has, however, relied upon two decisions. The first decision relied upon is Manindra v. Paresh Chandra (AIR 1971 Assam and Naga 127) and the second decision relied upon is Sadhu Ram v. Ghanshyam Pass (AIR 1975 Punj and Har 174) (FB). Both these cases are distinguishable. In none of the cases the question as to whether the refusal by a trial court to frame additional issues was in question. In the Assam case the court was interpreting an order refusing to allow the prayer of the plaintiff for issue of a commission, to make local inspection under Order XXVI Rule 9 C.P.C. The Punjab case dealt with a question as to whether refusal by the trial court to change the onus of an issue amounted to a case decided. The Punjab High Court was of the view that the change of onus has resulted in adjudicating the rights of the parties in controversy. The principle laid down in those cases do not apply in the present case,

15. In view of the above discussion I am of the opinion that the preliminary objection raised by the counsel for the plaintiff opposite party has substance and as such the revision is not maintainable.

16. In any case even assuming that the impugned order is revisable in my opinion it is not a fit case for interference as it will not occasion a denial of justice. The only aim of the applicants in making this application for the framing of additional issues is to delay the disposal of the suit. The suit was filed as far back as 1971. Seven years have already elapsed. When the issues were framed by the trial court on the basis of the written statement which was filed by the defendant applicant no other issues wag pressed. It is simply because of an observation made by the Supreme Court which was not in the nature of a direction that the defendant applicant again started a second innings by applying against for the framing of additional issues on pleas which were rejected by the Supreme Court. The trial court has categorically found that so far as issues Nos. 1 to 4 were concerned they did not arise because the plaintiff respondent had stated that he does not rely upon the agreement dated 7th April 1967. In regard to issue No. 5 the plaintiff respondent has given up the claim. In the circumstances issues do not arise at all Section 107 of the Code of Civil Procedure clearly provides that in an appeal filed against a decree the appellate court haspower to frame issues and to remit them for trial.

17. I have also examined the issues already framed. Issues No. 10 is to the following effect :

'Whether there was any agreement between the parties under which the plaintiff had waived his right to claim the balance of bales unsupplied and also not to claim any damages on that account? If so, its effect?'

18. This issue would enable the defendant applicant to argue on the basis of the pleadings stated in paragraphs 25 and 26 of the written statement. Counsel for the respondent has conceded that the pleas so raised in paragraphs 25 and 26 can be raised within the ambit of this issue. In the circumstances it is not necessary to frame any additional issue.

19. For the reasons mentioned above the applicant is not at all affected by the fact that the trial court has refused to exercise its jurisdiction in framing additional issue.

20. In the result the revision has no force and is dismissed with costs.